Clark v Clark Construction Initiatives Ltd. & Anor

A tribunal’s determination is not vitiated merely because it refers to authorities that were not canvassed, or even to authorities that cannot be traced. The question is whether the material was central to and influential in the decision, and whether the reasons as a whole remain intelligible, coherent, candid and sufficiently transparent. An isolated, distracting citation error does not justify setting aside a determination where the reader can still understand what was decided and why. The judgment also indicates, obiter, that whether an employment-duration requirement is jurisdictional may depend on whether the parties dispute the underlying facts and law; an agreement that the required period exists may ordinarily bring the parties within the tribunal’s statutory remit.

The appellant challenged an Employment Appeal Tribunal decision arising from proceedings before the Lincoln employment tribunal. He had brought claims including unfair dismissal, alleging procedural unfairness and protected public-interest disclosure, together with claims for unpaid salary, inadequate notice and failure to provide written particulars.

The employment tribunal dismissed the unfair-dismissal claims and made limited monetary awards. It also ordered costs. The EAT remitted several issues to a fresh tribunal but did not accept that the tribunal’s reasoning on the duration of employment was vitiated by its references to authorities that had not been canvassed and, in some instances, could not be traced. The central issue before the Court of Appeal was whether those citations deprived the determination of legal validity.

1. Appeal dismissed. The employment tribunal’s determination sufficiently met the requirements of intelligibility, coherence and candour, and met transparency adequately for legal purposes. The fact that one passage cited uncanvassed and unobtainable authorities was an uncalled-for and distracting fault, but it did not invalidate the determination.
2. The relevant question was whether the cited authorities had been central to, and influential in, the eventual decision. Under Stanley Cole (Wainfleet) Ltd v Sheridan [2003] EWCA Civ 1046, a tribunal is not necessarily vitiated by referring to uncanvassed authorities where those authorities did not materially influence the result. The EAT had adopted much the same approach in Albion Hotel (Freshwater) Ltd v Maia e Silva [2002] IRLR 200.
3. On the evidence, the references in the impugned passage amounted to support for the proposition that there is no universal test for identifying a contract of employment and that the whole relationship must be considered. They were a makeweight rather than the source of the tribunal’s decision. The tribunal’s reasoning remained sufficiently clear when read as a whole.
4. Lord Justice Sedley expressed doubt, without deciding the point, whether the duration of employment was truly a jurisdictional issue. Although a tribunal’s statutory remit cannot be enlarged by consent or silence, a dispute about the required period of employment may be a mixed question of fact and law. Where the parties agree that the requisite period exists, their agreement may ordinarily bring the case within the tribunal’s remit. Lady Justice Arden agreed that this issue should be left for future determination. Lord Justice Moore-Bick agreed with both judgments.

• Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed. The court upheld the validity of the employment tribunal’s determination concerning the duration of employment, while leaving the EAT’s remittal of other issues undisturbed.
• Employment Appeal Tribunal UKEAT/0225/07/CEA: remitted several issues to a fresh employment tribunal, including protected-disclosure allegations, costs, written particulars and notice. The EAT did not accept that the impugned reasoning was invalidated by the authorities cited.
• Lincoln Employment Tribunal: dismissed the unfair-dismissal claims, made modest awards for unpaid salary and short notice, and ordered costs relating to the protected-disclosure claim.